Hon. Donald Neil Plett (Leader of the Opposition): Honourable senators, I rise today to speak in support of Senator Boisvenu’s amendment, which I believe to be a carefully considered, thoughtful approach to proposed changes that have yet to be fully explained or justified.

At the outset, I want to commend Senator Boisvenu for his continued dedication to the pursuit of justice, both inside and outside of this chamber. When it comes to the protection of victims of crime, Senator Boisvenu has always ensured that nothing falls through the cracks. Canadians are truly better for his passion, tenacity and insight.

Colleagues, Bill C-5 proposes to end a significant number of mandatory minimum penalties for serious offences. The merits of mandatory minimums and the role of Parliament in establishing sentencing parameters has been debated at length. While I personally believe it is not only appropriate but indeed responsible for Parliament to set out mandatory minimum penalties on offences that impact public safety, I recognize that others do not share that perspective and view such stipulations as an infringement on judicial discretion. On this, I believe reasonable people can disagree. However, Senator Boisvenu’s amendment focuses on a problem that has been identified by those most affected and most in tune with the experience of survivors of domestic and sexual violence.

Bill C-5 proposes to allow for greater use of conditional sentence orders, such as house arrest, for a number of offences where the offender faces a term of less than two years of imprisonment. The offences eligible under this bill include sexual assault, kidnapping, human trafficking, assault with a weapon and more. Women’s groups and victim advocacy groups — those who have real-world experience dealing with the ramifications of violent offenders post-release — have highlighted a glaring oversight with this proposal: Bill C-5 in its current form will allow for instances in which violent offenders serve their sentences from home, in the same community as their victims. They can be right across the street, as was said, sitting in a lawn chair.

As this is a new proposal, we do not have any data on compliance with conditional sentence orders for these particular violent offences. However, Senator Boisvenu provided data indicating a 44% failure-to-comply rate with existing conditional sentences. We also have data that demonstrates a stark increase in crimes against the person — specifically family violence, criminal harassment, sexual assault and human trafficking. The Senate’s Legal Committee heard testimony about the experience of survivors of abuse when their abuser has been released on parole. The committee heard stories of intimidation, a lack of compliance and a general feeling of a lack of safety among abuse victims, which would only be exacerbated by this expansion.

Colleagues, while we all support the objective of rehabilitation, we also know that the best indicator of future behaviour is past behaviour. There is nothing in a conditional sentence that would protect women from a future violent attack.

I raised this issue with Justice Minister Lametti when he appeared before this chamber for ministerial Question Period. Unfortunately, as with most of his answers, this one provided no explanation and gave skeptics of this proposal no comfort. In my question, I highlighted the testimony of Jennifer Dunn from the London Abused Women’s Centre from her appearance at the House of Commons Justice Committee, when she said:

Women and girls are five times more likely than men to be victims of sexual assault, and sexual assault is a violent crime on the rise in Canada. With conditional sentencing, many women will be stuck in the community with the offender, which places them at even higher risk.

I asked the minister, given the rising statistics, what message it sends to victims of sexual assault to extend leniency to sexual offenders through this measure. He answered by saying, “It will always be the case that serious crimes will attract serious penalties . . . .”

We all know that this is, in fact, not the case, even under the current law. We can all point to examples of heinous crimes receiving shockingly low sentences that resulted in public outrage. However, given the minister’s answer, I must ask: What could possibly constitute a non-serious sexual assault? Nobody has provided an answer for that — not the minister, not the officials, and not the sponsor of this bill.

Senator Simons did try to draw a distinction between rape and what she considered to be a less serious type of sexual assault. However, there is a reason the offence of sexual assault is broad and encompasses a range of behaviours, and that is because, as the Supreme Court outlines, sexual assault violates “the sexual integrity of the victim.”

This is serious, colleagues. Regardless of whether people in this chamber find that to be a laughing matter, sexual assault, in all its forms, has the potential to cause serious, lasting trauma for victims, and our laws need to continue to condemn sexual assault in all its forms.

Colleagues, we must ask ourselves: What specific problem is this conditional sentence expansion seeking to fix? Some have cited the overincarceration of Indigenous peoples as a justification for this measure. However, on that point, the committee heard no specific evidence that expanding conditional sentencing measures would have an impact on the Indigenous incarceration rate. In fact, University of Ottawa criminology professor Dr. Cheryl Webster and PhD graduate Dawn North testified on this specific misconception. While they wholeheartedly support the stated goal of prison reduction for Indigenous peoples, they cautioned that the data and multiple subsequent evaluations, in fact, demonstrate that the expansion of conditional sentence eligibility as a prison alternative has no meaningful impact on incarceration rates of Indigenous peoples.

Ms. North stated that there is “. . . little reason to believe that the sanction will now contribute to significant prison reduction, especially for Indigenous peoples.”

In particular, Ms. North described the data in great detail:

The research does suggest that even when conditional sentences were broadly available, Indigenous populations or offenders didn’t proportionately benefit from them. There were instances when they were benefiting, but it wasn’t in the same proportion as other offenders. There’s also data suggesting Indigenous offenders tend to have higher breach rates even when they are granted conditional sentences. This becomes, of course, a problem for overall incarceration rates when they’re imprisoned upon breach.

Colleagues, if the reduction of Indigenous incarceration rates is the rationale for this expansion, it is not rooted in evidence and, according to researchers, could actually have the opposite effect when breach rates are considered.

Not to mention, the data is clear that Indigenous women are at an increased risk of experiencing domestic and sexual violence. In fact, colleagues, more than 4 in 10, or 43%, of Indigenous women have experienced sexual violence in their lifetime. How could it possibly benefit an Indigenous survivor of abuse to have their abuser serve their sentence in the same community — across the street?

In my follow-up question to Minister Lametti, I asked what impact he believed this would have on a victim’s likelihood to come forward, given that sexual assault is estimated to be the most under-reported crime in Canada. The minister refused to answer the question. Instead, he used the opportunity to tout his government’s record on helping victims of crime. Quite a rich retort from the minister who refused to appoint a Federal Ombudsman for Victims of Crime for 361 days, meaning that a year’s worth of legislation impacting victims did not undergo this critical review. In fact, it would have served us well to have such a review on this legislation as we consider its impact on victims.

While the minister did not have the answer, those who work with victims of sexual violence know exactly what is at stake. When Jennifer Dunn was asked about this during the Senate Legal Committee, she indicated that she heard from a victim in her centre’s care that very day that she testified — the victim stated, unequivocally, that less protection in sentencing means fewer women coming forward, which would be a real setback for the fight against sexual assault.

Senator Boisvenu, in bringing forward this amendment, has carefully selected the offences that are most highly correlated with domestic and family violence — offences for which a house arrest in the community would pose the greatest risk to victims.

Some senators in the Legal Committee noted that criminal defence lawyers want this bill passed as quickly as possible, specifically the conditional sentence expansion — “imperfect as it may be,” they said — because it would benefit their current clients.

Colleagues, I submit that this is not a consideration we need to concern ourselves with. It is not our job to make sure that defence counsel can ensure a better result for their clients. I recognize the important role that the defence plays in a fair and just trial. However, I have a hard time believing that many in this chamber are rushing to pass imperfect legislation that would benefit the Crown in ensuring a harsher sentence for the offender.

Rather than worry about which side of the courtroom this legislation helps, let’s, instead, listen to victims who have the experience to understand the real-world impact of this expansion.

One abuse victim in the care of the London Abused Women’s Centre said that:

. . . it seems as if we are focused on the men that have created the problem and are not listening to the women who are on the other side as victims.

Colleagues, the proposal to expand conditional sentence eligibility to perpetrators of violent offences is misguided. There is no data to suggest that it will impact the overincarceration of Indigenous peoples. Yet, it will certainly have an impact on the safety of abuse survivors — a category in which Indigenous women are tragically overrepresented as well.

Please consider, colleagues, what is at stake for all victims of sexual assault. Let’s concern ourselves with the victims — not the perpetrators — of sexual violence and all other violent crimes against people. Let’s listen to what victims are asking of us, and support this very thoughtful amendment.

Thank you, colleagues.

Hon. Marc Gold (Government Representative in the Senate): Honourable senators, I want to begin by thanking the Honourable Senator Boisvenu for his amendment, which clearly stems from his deep concern for the well-being of victims of crime, particularly victims of gender-based violence. However, the government opposes this amendment because it would limit judicial discretion in sentencing when the whole point of Bill C-5 is to broaden that discretion.

In committee, most of the witnesses were in favour of giving judges more flexibility to take into account the particular circumstances of the individual and the offence. In fact, many wanted this bill to go even further in that direction.

[English]

We absolutely agree that serious criminal behaviour should be met with serious sanctions. Under Bill C-5, the offences listed in this amendment will continue to result in a prison sentence almost all of the time. The bill simply gives judges the discretion to issue conditional sentences for these offences in what are likely to be rare and exceptional cases.

Judicial discretion is especially important where the description of the offence can cover a broad range of circumstances and degrees of culpability. For example, this amendment seeks to prohibit conditional sentences for the offences of “being unlawfully in a dwelling-house” and “causing bodily harm by criminal negligence.”

There could be, and I’m sure there will be, many instances where someone who commits one of these offences deserves — and will receive — a harsh sentence. But there could also be cases where it would be appropriate for the judge to have some flexibility. Indeed, when she spoke to this amendment, Senator Simons gave multiple examples of these types of scenarios.

The Criminal Code, as Senator Dalphond masterfully outlined, only allows conditional sentence orders for sentences of less than two years when the individual is not a public safety risk or, indeed, a risk to the victim. Now, one might be tempted to argue that we should jail everyone who commits any of these offences, just in case, because it is possible a judge’s assessment of whether someone poses a threat could be wrong.

But, colleagues, overincarceration comes with its own risks to public safety.

[Translation]

When we unnecessarily separate people from their loved ones, their jobs and their social support network, when we interrupt their education, send them far away from their normal environment and place their children in foster care, it can contribute to creating unstable homes and communities, which increases the risk of recidivism and the likelihood that the next generation will also end up in conflict with the law.

Honourable senators, in the long term, our communities are safer when dangerous people go to prison and when those who can safely remain in their communities are not needlessly imprisoned. It is therefore in the interest of public safety that the government opposes this amendment. I encourage all senators to do the same. Thank you for your attention.

[English]

Senator Gold: Of course.

Senator Gold: Thank you for the question. I won’t repeat the criteria that are set out in the Criminal Code, which make it clear that the offence must be one for which the judge would otherwise not impose a sentence of over two years, that there is no risk to the victim and that there’s no risk to public safety under all sentencing provisions. Therefore, it is case by case, and it is circumstance by circumstance.

Let us take the example of kidnapping, if I may. It’s a horrible crime when we imagine taking somebody, confining them against their will, locking them up and all the horrible things that unfortunately happen not only in TV shows but in real life — horrible things, indeed. But it could also apply, technically, to blocking an exit in the heat of a fight or to a prank that has simply gone too far. Indeed, unfortunately, and tragically in some cases, these actions take place when there are disputes around custody or care of a child.

I repeat, colleagues, and in response to your question, Senator Batters, that the judge has the discretion to take all the circumstances into consideration but is obliged by law to not grant a conditional sentence order if there is a risk to the collectivity, a risk to the victim or would otherwise be inappropriate given the objectives of the criminal law. In that regard, I think we should support the bill and reject this amendment.

Senator Plett: I’m not sure, Senator Dalphond, that I even understand the question properly.

I think if a person commits a sexual assault, that person needs to be incarcerated, simple as that. The judge has the discretionary powers to say whatever the minimum is and give that minimum. We, as parliamentarians, have an obligation to fulfill that — not to allow individual judges who may have had a bad day to allow that bad day to influence their decision. We need to have rules in place. We have had rules in place. You alluded to Senator Boisvenu speaking to 2012 and how he had been part of a different government. Yes, that government brought in what was considered good mandatory minimums.

I’m not sure where you would possibly think that I would have somewhere changed my mind on that. If that person has committed a sexual offence against somebody I know — some woman or girl I know — I don’t want that person living beside her, period. The longer we can keep that person away, the better it is, yes. That is what I believe.

Senator Plett: Senator Dalphond, in all fairness, we’re having a debate here. It’s not a question. You heard my speech. You know what my answer is. Yes, I believe if a person has committed a sexual assault, then that person needs to be punished accordingly.

The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

(On motion of Senator Jaffer, report placed on the Orders of the Day for consideration at the next sitting of the Senate.)